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Term 1 - all subjects > Legal study > Flashcards

Legal study Flashcards

1
Q

What is the difference between a law and rule?

A

The biggest difference is consequence. Rules are sets of instructions to help people live and work together, however a law is a set of legal rules implemented to keep order and people safe.

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2
Q

What are the types of purpose of law?

A

Social, moral, economic, political and cultural.

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3
Q

What are the three features of a law that distinguish it from a rule?

A

Authority, consequence and regulation.

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4
Q

What is the Rule of Law?

A

The Rule of Law is the principle that all people are subject to the law and equal before the law.

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5
Q

What does it mean by sources of law?

A

Sources of law is used in two ways ;

Authoritative source of law and historical development of a law or legal system.

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6
Q

What does authoritative law include?

A

Statue and common law.

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7
Q

What are the three division of power?

A

Exclusive, concurrent and residual.

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8
Q

Who is included in Exclusive division of power?

A

Federal parliament.

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9
Q

Who is included in Concurrent division of power?

A

Federal/state parliament.

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10
Q

Who is included in Residual division of power?

A

Parliament.

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11
Q

What does the Australian constitution of the division of powers do?

A

They tell us which powers are given to the commonwealth and which remain to the states.

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12
Q

What is the aim of the separations of powers?

A

The aim is to keep the powers of making, implementing and interpreting the law seperate.

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13
Q

Why was the separation of powers created?

A

To avoid injustice and power imbalance if one sector holds too much power.

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14
Q

What are the separation of powers?

A

Legislative power, executive power and judicial power.

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15
Q

What is the legislative power and who is involved?

A

Legislative power is the making of a law which includes representative governments of the commonwealth and the states.

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16
Q

What is the executive power and who is involved?

A

The executive power is the implementing, and or carrying out of the law, which includes the executive and ministers of the government.

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17
Q

What is the judicial power and who is involved?

A

Judicial power is the interpretation of the law, which is carried out by the courts or tribunals.

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18
Q

Briefly explain judicial, executive and legislative power?

A

Judicial is the power to make judgements on law, Executive is the power to put law into action and Legislative is the power to make and change the law.

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19
Q

What are the three levels of parliament?

A

Federal, state and local.

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20
Q

Who is included in the federal parliament?

A

Crown, House of Representatives and senate.

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21
Q

What is the crown?

A

The constitution of Australia where the people of Australia are subject to the authority of the queen of Britain.

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22
Q

What is the House or Representatives?

A

It is where 150 Australian citizens sit and are obligated to represent the interests of their constituents and introduce, debate and then pass or reject proposed laws.

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23
Q

What is the senate?

A

It is the upper of the federal parliament, where each state represented in equal numbers and bills that are sent in from the house of reps are reviewed.

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24
Q

Which house and what steps are needed in order to for a bill to be processed first?

A

The first is House of Representatives. The 1st reading is held, then the 2nd reading, house committee, consideration in detail, 3rd reading and BILL IS PASSED.

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25
Q

Which house and what steps are needed in order to for a bill to be processed second?

A

It goes through the senate next, which goes 1st reading, 2nd reading, senate committee, committee of the whole, 3rd reading and BILL IS PASSED.

26
Q

Which house and what steps are needed in order to for a bill to be processed last?

A

It gets taken to the Governor-general, where it goes through the royal ascent and then the bull finally becomes an act of parliament.

27
Q

What is the adversarial system?

A

It is what the criminal justice system is based on because it is about contest. This is because there are two parties that argue their differing versions of the fact and related law before the court.

28
Q

What are the two main elements of the adversarial system?

A

Two parties who present their cases and an independent and impartial judge (or magistrate).

29
Q

What is the inquisitorial system?

A

This system is where the judge plays more of a role in the investigations. The inquisitorial system is where the court is actively involved in determining the facts of the case.

30
Q

What are the differences between an adversarial system and an inquisitorial system?

A

An adversarial system holds a contest between two parties in dispute, where each side puts their own versions of the facts, however an inquisitorial system is presided by a judge who questions the accused, gather evidence and decide the truth.

31
Q

What is common law?

A

Common law is the law created by judges.

32
Q

What is statue law?

A

Statute law is the law made by the parliament.

33
Q

What is judicial precedent?

A

Judicial precedent is when judges are obliged to follow the decisions of earlier cases in higher courts when the factual circumstances are essentially the same.

34
Q

What is the main purpose of judicial precedent?

A

The whole purpose is to enable judges to decide cases with similar facts in a like manner.

35
Q

What is ‘ratio decidendi’?

A

It is the reasoning used by the judge to make the final decision in court.

36
Q

What is ‘obiter dicta’?

A

It is the opinions expressed or comments made by the judges which are not essential in making the final decision.

37
Q

What is an example of ‘ratio decidendi’?

A

Your parents decision, reasons and conditions of letting you go out with friends.

38
Q

What is an example of ‘obiter dicta’?

A

Other comments made by your parents such as what they think about your friends because it is not relevant to the final decision.

39
Q

What is the fundamental rule?

A

It is that judges are required to interpret the statute by determining what parliament would have intended at the time the law was passed.

40
Q

What is jurisdiction?

A

Figuring out which court has the authority to make a decision in relation to the legal issue raised.

41
Q

What are the two types of court jurisdiction?

A

Original jurisdiction and appellate jurisdiction.

42
Q

Who are simple offences heard by?

A

They are heard by magistrates alone.

43
Q

Who are indictable offences heard by?

A

Usually by judge, with or without a jury in the district or Supreme Court.

44
Q

What are the two main roles of the high court of Australia?

A

To hear cases ok constitutional matters and to operate as an appellate (appeal) court.

45
Q

What is criminal law?

A

It provides for the state to take legal action against an accused; that is, to prosecute them in a court of law to achieve some type of punishment.

46
Q

What are types of stakeholders roles?

A

The victim, the accused, the suspect, the witness and the offender.

47
Q

What are summary offences?

A

They are matters tried but the magistrate.

48
Q

What are indictable offences?

A

They are more serious crimes and misdemeanours which require a trial by judge and jury.

49
Q

What are examples of indictable offences?

A

Rape, murder, robbery, serious assault etc.

50
Q

What is actus reus?

A

It is the physical performance of the criminal act; the action taken or omitted by a person.

51
Q

What are examples of actus reus?

A

Hitting another person, stabbing a person to death, hacking a computer etc.

52
Q

What is mens rea?

A

It is the persons awareness of the fact that their conduct is criminal ; the criminal intent.

53
Q

What are the three levels of mens rea?

A

Intention, recklessness and criminal negligence.

54
Q

What is the onus of proof?

A

It is the reason of the prosecution to persuade the arbiter (decider) that the offence has been committed.

55
Q

What is standard of proof?

A

It is the proof ‘beyond reasonable doubt’.

56
Q

What is a strict liability offence?

A

It is where the prosecution needs to prove that the accuses carried out the act, and is not required that the accused intended to commit the crime.

57
Q

What is criminal conduct?

A

It is behaviour that the law seems to be wrongful.

58
Q

What is a summons?

A

It is an official document that requires a person to appear and give evidence in court if it is in a magistrate court.

59
Q

What is a subpoena?

A

It is when a person is called present to present evidence in a district or Supreme Court.

60
Q

What are the types of evidence?

A

Direct and circumstantial evidence.

61
Q

What is the difference between the ‘balance of probabilities’ and ‘beyond reasonable doubt’?

A

The difference is

Term 1 - all subjects (3 decks)

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